Our rights to light laws are archaic in parts and drawn from a combination of longstanding precedents and creaking statutes. I have seen development projects falter unnecessarily at various stages due to rights to light affecting the site.
I am pleased to see that the Law Commission announced it will include rights of light in its next programme of potential recommendations for reform. Our rights to light laws are archaic in parts and drawn from a combination of longstanding precedents and creaking statutes. I have seen development projects falter unnecessarily at various stages due to rights to light affecting the site. One example was the recent high profile Canary Wharf Group project at 20 Fenchurch Street, which was blighted by these issues and which seems to have attracted attention in Whitehall.
It is not that the preservation of rights to light should be questioned as a reasonable right for landowners to acquire and be protected, but we need to address recent case law which has in practice added a greater level of uncertainty as to the remedies available for breach and more particularly where injunctive relief will be available.
Injunctions generally have enjoyed an unusually high profile at the beginning of the summer (thanks to the end of the football season providing some ’interesting’ gossip) but whilst in the real world of property, injunctions are more associated with “NIMBYS” and major contractual disputes, the potential availability of injunctive relief in rights to light cases has become an increasing difficulty for developers.
The issue is not usually a question of quantifying compensation potentially payable or whether a right to light will be actually infringed. It is more the difficulty for rights to light surveyors and lawyers in assessing whether a third party landowner, whose rights to light may be affected, will seek injunctive relief rather than settle for negotiated compensation or, more importantly, would only be entitled to compensation if the matter progresses to Court. This uncertainty, and the potential insurance costs, can tip the balance against developers’ appraisals. The length of time it can take to ascertain or conduct negotiations with landowners to obtain releases can itself be the death of many projects that don’t have potentially super profit levels.
I hope that the Law Commission’s review at the very least creates suggestions for greater certainty of remedies that are available. Whilst we are told not to expect anything being presented to parliament for consideration for three years, I hope the messages coming through in relation to its proposals will give heart to developers who have projects on the horizon, or on hold pending resolution of how to deal with these issues where local authority development partners are not around to assist with CPO powers.
Perhaps the Law Commission will take a lead from the Party Wall Act which, I believe, has some parallels with rights to light position and adequately (for the most part) deals with the management of the parties’ rights through a series of statutory notices and consultation. Moreover the Party Wall Act is an act that lawyers are rarely asked to advise upon which, I think most lawyers would have to concede, means it is a piece of legislation that works better than quite a few currently on our statute books.